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Published online by Cambridge University Press: 06 March 2019
The incendiary image of German soldiers, serving as members of a proposed UN peace keeping force assigned to the Palestinian territories, formed the emotionally-charged and highly controversial backdrop to the Constitutional Court's recent consideration of the constitutionality of Germany's military/civil service obligation. The conflict in the Middle East aside, the military/civil service obligation has also emerged as a hot domestic issue as the campaign for the September federal elections catches its stride. Given this political climate it is hardly surprising that the Bundesverfassungsgericht (Federal Constitutional Court) opted to dismiss, on procedural grounds, two cases that posed distinct but related challenges to Germany's military/civil service obligation. It is, however, precisely the Court's explicit recognition of the politically-loaded nature of questions concerning Germany's military/civil service obligation that makes its decision in the first of the two cases remarkable.
(1) See, e.g., Foreign Ministry Proposals for Mideast Raise Prospect of German Troops in Region, FRANKFURTER ALLGEMEINE ZEITUNG (ENGLISH EDITION), 10 April 2002, at 1; Peace Plan Discussion Heats Up: Prospect of German Troops in Mideast Draws Sharp Criticism, FRANKFURTER ALLGEMEINE ZEITUNG (ENGLISH EDITION), 11 April 2002, at 1; Georg Paul Hefty, Breaking Yet Another Taboo, FRANKFURTER ALLGEMEINE ZEITUNG (ENGLISH EDITION), 11 April 2002, at 1.Google Scholar
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(3) Concrete Judicial Review, see Article 100.1, GG; Article 13.11, BVerfGG.Google Scholar
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(5) BVerfG, 2 BvL 2/02 from 27 March 2002, http://www.bverfg.de/. The decision is a ruling of the Fourth Chamber of the Second Senate. Article 3.2 of the Basic Law provides: “Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.” Article 3.3 of the Basic Law provides: “No person shall be favored or disfavored because of sex, …”Google Scholar
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(46) BVerfG, 2 BvL 5/99 from 20 February 2002, Para. 47-48 http://www.bverfg.de/ (citation omitted) (translation by the author).Google Scholar
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(50) The Union Party Parliamentarians who brought the challenge to the statue to the Constitutional Court claimed that the new rules established, in fact, the right to choose between military and civil service. They further represented that the statute had been represented to the public as establishing such a choice and “thereby abolishing the military service.” BVerfGE, 48, 140 (1978) (translation by the author).Google Scholar
(51) Kommers, Donald P., THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 459 (1997 2nd ed.).Google Scholar
(52) BVerfGE 48, 127 (171) (1978).Google Scholar
(53) Kommers, Donald P., THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 460 (1997 2nd ed.). The Court upheld that legislation. See, BVerfGE 69, 1 (1985).Google Scholar
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